Essay

Screening for Solidarity

Stephen Lee

Assistant Professor of Law, University of California Irvine School of Law

For helpful comments, I am grateful to Jennifer Gordon, Catherine Fisk, David Moore, and Laura Weinrib. This essay benefitted from presentations at UC Irvine School of Law, BYU J. Reuben Clark Law School, and at The University of Chicago’s Immigration Law and Institutional Design Symposium, held at The University of Chicago Law School on June 15 and 16, 2012. The UC Irvine Law School research librarians provided excellent support. I am also grateful to Morgan White-Smith, Taylor Meehan, and the other University of Chicago Law Review editors for their superb editorial work. Please direct comments and questions to slee@law.uci.edu.

A central part of the unauthorized migration story has been about work. Eight million workers in the United States are unauthorized, which is nearly three-fourths of the unauthorized migrant population and about 5 percent of the total workforce. But at the heart of this story is a tension: While immigration law expressly prohibits employers from hiring unauthorized migrants, many of our nation’s workplace laws cover workers irrespective of immigration status, which means that an unauthorized migrant might obtain remedies for harms incurred in the course of work she was not entitled to undertake in the first place. In recent years, the executive has ramped up its efforts to facilitate this process. Through a series of guidance documents, memoranda, and public announcements, the executive (especially under President Barack Obama) has redesigned immigration enforcement to allow the assertion of labor rights to slow, and in some cases, to halt altogether the removal process. In other words, the executive grants varying degrees of membership benefits to otherwise removable migrants who possess nonfrivolous workplace-related claims.

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